Welcome to the new post-transparency
Autocratic governments naturally allergic to openness
[The following is a condensed version of a speech I delivered in April to the annual congress of the Privacy and Access Council of Canada (PACC), in Ottawa.]
The world is chaotic. Sovereignty, diplomacy, trade, free speech, science are all under assault. Daily life seems suddenly dangerous. Even the weather report is scary.
“Mere anarchy is loosed upon the world,” as William Butler Yeats put it in The Second Coming (1919).
We’ve entered an era of might makes right. Familiar rules are changing. Among the changes is the discarding of rules. It’s an “age of coercion,” in the apt phrase of former top public servant Michael Wernick.
Economists, lawyers, five-star generals are all struggling to understand the dangers of the new landscape.
I’m also struggling in my own corner of expertise, that is, the modern idea of open government. In particular, the progressive notion hatched in the 1960s that governments have a moral, ethical and legal obligation to turn over information - on demand - to their citizens.
It’s increasingly clear that the party is over. The imperative for government openness has had a mixed, 50-year run. But the host has removed the punch bowl. We’ve entered a moment that I can only call “post-transparency.”
The timing is bad. Just when we need to know more about what leaders are up to, we’ll know even less. Just as the town square is flooded with bogus information, we’re losing a trustworthy source.
To be sure, the last half-century of so-called openness has been no picnic.
It started in 1966 with an American law, the Freedom of Information Act, which was later strengthened after the Watergate scandal exposed a corrupt White House.
That law inspired several members of our Parliament to fight for similar legislation here. The pioneers were Barry Mather of the NDP, and Ged Baldwin of the Progressive Conservatives.
There was no Watergate-type scandal driving reform in Canada. Instead, Mather and Baldwin steadily persuaded more people to get on board their project. Transparency eventually became a new zeitgeist. The people had a right to information, sometimes called a right to know. Eventually, no politician could credibly argue against that principle.
The short-lived Joe Clark government tabled a freedom-of-information bill in 1979. The Liberal government did the same in 1980, and in 1982 Canada finally had its own national law, the Access to Information Act. Despite amendments in 2006 and 2019, the law today largely reflects that first iteration some 43 years ago.
Canada’s access-to-information system today has many unhappy users, including me. There are too many legal loopholes to keep documents secret. Delays plague the system. Formal appeals are biased in favour of government. Cabinet records are stuck behind an impenetrable fortress. The reform process is glacial.
Despite the frustrations, all sides did acknowledge – at least publicly – that governments must be transparent. It was a foundational premise. Politicians may have discovered covert ways to subvert transparency, but no one dared claim it was an outmoded idea. No sane public figure would ever ask Canadians to embrace more secrecy in government.
Despite its flaws, the Access to Information Act has delivered on many of its promises. The so-called sponsorship scandal was triggered by an access-to-information request, which led to a sea-change in government. Restaurants in downtown Ottawa watched business dry up as politicians’ expense accounts became public. In a thousand ways, documents released under the law have held governments to account, often forcing them to clean up their act.
But those days are fading. After a half-century, governments no longer care to operate inside a fishbowl, their every move subject to scrutiny. They’ve become emboldened. They’re pushing back.
In Canada, a commonly heard rationale for reducing transparency is that it’s too expensive. Or that access-to-information has been weaponized by anti-government wackos.
Over the years, Ontario, Nova Scotia and, recently, British Columbia have jacked-up application fees to discourage freedom-of-information requests. The higher fees did nothing to offload the cost of processing requests. Rather, the unspoken motivation was to make requests too expensive for ordinary citizens. These experiments showed it does work.
Some jurisdictions, notably the federal and Nova Scotia governments, rejigged the law so they could ignore requests they declared to be frivolous and vexatious. This tactic has flopped. It has done almost nothing to stem the tide of requests.
But these were mere skirmishes. Much worse is on its way.
The pandemic in March 2020 was a harbinger of things to come. The public sector pivoted to manage the health crisis. Access-to-information systems quickly broke down, at the very moment that journalists and others needed to keep governments honest and Canadians informed. Five years later, we’re still digging out from that transparency hole.
There was no hue and cry about the hit that transparency took. For most Canadians the life-and-death emergency required strong, activist governments, wholly focused on the lethal threat. Access to information was a distraction, and could potentially jam the gears. Worried Canadians valued bold government. Accountability could wait.
We’re now well into another existential emergency. This one is worse than a pandemic which, after all, can be fought with science. It’s worse, because the demagogue behind the trade war, and behind the threat to our sovereignty, is like a roulette wheel producing random outcomes after every spin. How do you counter a shape-shifting adversary?
In the United States, the freedom-of-information system is in free fall. Elon Musk’s chainsaw has cut into the ranks of FOI officers who process requests. The administration has flouted the legal norms that support and deliver transparency. Cabinet members use the Signal app to ensure their deliberations vanish to history. Records – including datasets – are disappearing. As in the dystopian novel Fahrenheit 451, citizen groups are scrambling to preserve whatever documentation they can. It’s a salvage operation.
In Canada, the direct attacks on our economy – and the repeated threats to our nationhood – have capsized our politics. Domestic issues have receded in the face of the national project for survival. Canadians rally behind the leader who offers the toughest response to the bully. They want a single-minded, all-of-government strategy to flex our own muscle. Inevitably, we begin to resemble our adversary. And as recent history shows, audacious governments can steamroll transparency.
What hope is there for open government in this new re-ordered world? The transparency zeitgeist of the last half-century is evaporating in the face of dominant governments. The survival imperative may mean shedding some of the trappings of democracy, at least temporarily.
We’ve entered a post-transparency era.
The watchdogs who held governments in check are disappearing. News media are filing fewer access-to-information requests. That’s because there are fewer reporters, and more of them have precarious work. Long delays in responses to requests mean a journalist will have completed two or three short-term contracts before seeing any documents – and those will be blacked out. Who can blame young reporters for giving up?
Opposition parties also appear to be using the Act less often, relying instead on Order Paper questions, which produce faster - though not always better - results.
And as more departments snub the Access to Information Act, it has become clear there’s no useful legal process to make them toe the line. There are no penalties for violating the legislation. Departments can ignore orders from the Information Commissioner of Canada without consequence. And the courts in recent years have endorsed secrecy, including Supreme Court of Canada rulings that protect ministers’ offices and cabinet from greater scrutiny.
Recently, Alberta and Nova Scotia introduced legislation further restricting their freedom-of-information regimes. As Sharon Polsky of PACC has noted, it’s monkey-see, monkey-do. Governments are egging each other on, watching to see what they can get away with.
Non-government organizations and public-spirited citizens have tried to fill the vacuum. The Investigative Journalism Foundation, working with law professor Matt Malone, has built a public database of released access-to-information documents, because government has declined to do so.
There are private projects underway to automate the process of generating, filing and tracking requests and appeals. And groups such as the Canadian Association of Journalists and the Centre for Free Expression have created shaming citations – such as the annual Code of Silence awards – to increase public pressure on governments.
As noble as these efforts are, the state still has a firm grip on the levers of transparency. And the state alone has the resources to build the machinery of genuine openness. Government is the choke-point of reform.
So let’s review elements of the new post-transparency:
We’ve entered a world where strength prevails over values and rules.
Governments are successfully resisting scrutiny, through regressive legislation, the courts and strategic inefficiency.
News media are losing the ability to demand transparency.
Government resources to service transparency are shrinking.
Non-government players are attempting to fill the gap, but can do only so much.
Can anything be done about this diminished, darkening world? For the answer, we need some historical perspective.
Sweden’s parliament - the Riksdag - passed the world’s first law granting citizens the right to access government documents. That was back in 1766, with the Freedom of the Press Act.
But the legislation, which had been opposed by the nobility, soon came under attack. A power-hungry king, Gustav III, gutted the law in 1774, and imposed severe limits on transparency.
The Act was mostly restored by 1812, after Gustav’s assassination and the dethronement of a successor king.
There were other setbacks along the way, including restrictions imposed during the Second World War. In 1949, the legislation was restored again.
Today, the Swedish law still has its flaws and critics. Some government institutions are still finding ways to dodge their legal responsibilities. But mostly, it works.
The lesson here is that open government is never a one-and-done. Like democracy itself, transparency is a work in progress - and, yes, sometimes a work in regress. The project is never finished.
Openness will always have its foes, especially the powerful who feel threatened by public scrutiny. There will always be setbacks. Governments will subvert transparency, citing the need for efficiency, or unfettered decision-making, or cost savings.
Look at the country that pioneered freedom of information – it’s still working out the kinks more than 250 years later.
So the resurgence of government opacity is never the end of the story. We need to resist normalizing secrecy.
In Sweden, a regicide helped restore transparency in that country. In Canada, we have better options, including elections. Canadians need to take ownership of their democracy, be responsible for its health, and demand better. And recognize that transparency is our most powerful defence against governments that would betray our trust.